Standing Committee D

[MissAnne Beggin theChair]

Jim Knight: I beg to move,
That—
(1)during proceedings on the Commons Bill [Lords] the Standing Committeeshall (in addition to its first meeting on Tuesday 25th April at 10.30a.m.) meeton—
(a) Tuesday25th April at 4.00p.m.;
(b) Thursday27th April at 9.00 a.m. and 1.00p.m.;
(2) theproceedings on the Bill shall (so far as not previously concluded) bebrought to a conclusion at 4.00 p.m. on Thursday 27thApril.
It is a greatpleasure to serve for the first time under your chairmanship, MissBegg. It is perhaps a sad reality of devolution that no ScottishMembers of Parliament are members of the Committee, so it is a joy thattwo Scottish MPs will be in the Chair using their wisdom to look afterus. We are all looking forward to that and to our forthcomingproceedings in which the various stars of the debate on Second Readingwill be brought together. The programme motion is straightforward inrespect of the timing of the four sittings of theCommittee.

James Paice: May I addmy welcome to you, Miss Begg? In light of the Minister’sreference to both Chairmen being Scots, I am sure that we shall havecomplete impartiality from the Chair—even more than we wouldhave done—as the Bill is solely to do with commons in Englandand Wales. The hon. Gentleman referred to the stars of the debate onSecond Reading. It was not the longest debate in the history of debatesin the House of Commons; nevertheless the Bill involves many issues.Although it will not grab partisan headlines, a lot of matters willaffect many ordinary people, farmers and others throughout thecountry.
I confessthat, during my preparation for the Bill, I was surprised how manydifferent issues arose. I have many matters on which to challenge theMinister and I know from working with him on previous Bills—Ican say “with” not “against”—that heis always open to constructive proposals. I am sure that we are lookingforward to his constructive responses. Several wrinkles need to beironed out. Questions need to be asked and, in some cases, changes needto be made despite the excellent work of the House of Lords in itsconsideration of the Bill. However, unusually, it did not get the Billentirely right so I am happy to support the programmemotion.

Roger Williams: I alsowelcome you to our proceedings, Miss Begg, and look forward to servingunder your chairmanship.As the hon. Member for South-EastCambridgeshire (Mr. Paice) said, when preparing for our proceedings inCommittee we received several representations and a number of issuesmust be teased out. We might not have the opportunity for another 40years to deal with common land. It is therefore our duty to give theBill full scrutiny and attention so that we can put it in a form thatwill serve the interests of not only landowners and rights holders, butthe public who regard commons as an important national resource fortheir recreation, nature conservation and other conservation issues. Asalways, I look forward to the Minister’s constructivecontributions to the debates and his responses to our amendments. Therepresentations that we shall put forward will not necessarily betechnical, but they come from people who have experience of managingcommon land and exercising theirrights.

Questionput and agreedto.

Anne Begg: I remind the Committee that there is a moneyresolution in connection with the Bill, copies of which are availablein the room. Adequate notice should be given of amendments. As ageneral rule, I and my fellow Chairman do not intend to call starredamendments, including any that might be reached during an afternoonsitting of theCommittee.

Clause1

Registersof common land andgreens

Questionproposed, That the clause stand part of theBill.

Jim Knight: The clause requires commons registrationauthorities, generally county councils and unitary councils, tocontinue to keep the registers of common land and town or villagegreens that were established under the Commons Registration Act 1965.It is not a new duty on local authorities; the clause simply preservesthe responsibility that they already have under existinglegislation.

Questionput and agreedto.

Clause 1ordered to stand part of theBill.

Clause2

Purposeofregisters

Questionproposed, That the clause stand part of theBill.

Jim Knight: We think that it is helpful if the Bill clearlysets out the purposes to be achieved by the registers held andmaintained by commons registration authorities. Subsection (1)explains:
“Thepurpose of the register of common land is...to register land ascommon land; and...rights of commonexercisable”
over suchland. Subsection (2) applies the same principles in relation to theregister of town or village greens.

Question put and agreedto.

Clause 2ordered to stand part of theBill.

Clause3

Contentofregisters

Roger Williams: I beg to move amendment No. 94, in page 2, line15, leave out subsection(5).
It is a pleasureto move the first amendment. The clause says, “Regulationsmay”. Throughout the Bill, there are many issues relating tocommons that would be subject to regulation. The Minister said jokinglyon one occasion that there will be enough statutory instruments inrelation to the Bill to see us through our parliamentary careers.Looking around the room, in terms of longevity, perhaps my hon. Friendthe Member for North Cornwall (Mr. Rogerson) has more chance of seeinganother Bill relating to commons than most of us. That being the case,we are concerned that the form of the regulation is not obviouslyclear.
Any regulationthat allows information to be put on a register raises data protectionand human rights issues. We are concerned about the nature of theinformation that may be put on the register. I understand that theDepartment for Environment, Food and Rural Affairs Bill team, in itsguidance document on identifying the ownership of rights of common,said that if not only the dominant tenement was included, but therights pertaining to it and the holder of those rights, that might leadto confusion about who holds the rights, because they refer to thedominant tenement, not a person. The only way to establish who owns thedominant tenement is to refer to the land register. If there were to bea problem in resolving an entry in the commons register and an entry inthe Land Registry, there might be some difficulty in agreeing who wasthe holder of therights.
Having saidthat, I have already had my hand slapped by Mrs. Griffiths, the commonsregistration officer for Powys county council, who says that thecommons registry officers for Powys and the Marches insist that theclause is included in the Bill, and she tells me that she has puttremendous effort and activity into ensuring that that takes place. Herargument for doing so is that it has been helpful to farmers whoexercise rights of common, when claiming subsidies through theintegrated administration and control scheme, and now through thesingle farm payment, because they have been able to prove that theyhave rights overthe common by getting copies of the registerin which Mrs. Griffiths has included the individuals who own therights.
I understandthat Powys county council has been reprimanded by DEFRA for taking thiscourse of action, so we are in quite a difficult position. I shall readbriefly a letter from Mrs.Griffiths:
“Currently,the Rights section of the register shows the name of the originalapplicant for registration (1967-70) against the details of grazing fora particular farm holding. If a farm with grazing rights is sold inlots then application can be made to apportion the grazing rightsbetween the various parties on a pro rata basis according to acreage.We then amend the register and cross out the original 1960s entry andinsert two or more new entries.
If the farm is transferred, as awhole, to the next generation on the death of the original applicant oris sold in its entirety to a new owner, there is no requirement underthe 1965 Act to amend the register. It is legally correct to show thename of a person who died or moved away 30-plus years ago and this isone of the reasons why the register needsupdating.”
Shegives an example from the area that she administers of the importanceof entering the names of rightsholders:
“When...Llanbedrand Llandeilo hill (Ireland moor) went into the ESA, Maureen Lloyd, thecommoners’ association secretary, had to ensure that theregister was amended to show all the current commoners’ nameswere in the register or else they wouldn’t receive payments foragreeing to reduce the number of animals grazing on thecommon.”
Is itthe Minister’s intention that as a result of clause 3, commonsregistration authorities will include the names of the holders ofcommon rights? If so, that goes against the advice of the Bill team,which is a problem. We are concerned that the register, a publicdocument, might contain unnecessary information or information thatrights holders do not want to be there.
Subsection (5) says thatregulations may
“requireor permit other information to be included in aregister”.
We do not havea problem with “permit”, but we do with“require”. The provision is so open-ended that it wouldallow the publication of lots of quiteimproper andunnecessary information—perhaps even information that goesagainst the nature of the legislation. Will the Minister respondpositively, indicating how he envisages that the regulation will actand what will be init?

Jim Knight: I would be pleased if the hon. Gentleman passed onmy best wishes to Mrs. Griffiths of Powys council, who clearly showswisdom. We will return to the registration of ownership of rights whenwe discuss clause 8 and the interesting issue of apportionment, so Ishall not dwell on it unduly.
The register’s coreelements are the land register and the rights register. The landregister contains a conclusive record of the extent of common land andgreens, and the rights register contains a conclusive record of thenature and quantification of rights exercisable over the land to whichthey are attached.
The power in subsection (5) isintended to amplify what can or must be shown in the register. Forexample, we expect to provide that the registers may continue to showall the additional information—information about mineral rightsand public rights of access, for example—that the 1965 Actpermitted them to show. That the register should continue to show thatinformation does not raise any new data registration or human rightsissues.
We have alsoproposed that commoners should be able to enter in the register adeclaration of their entitlement to exercise rights of common when theyown the land to which such rights are attached. I think that thatanswers the hon. Gentleman’s question—they would be ableto register those rights, but would not necessarily have to. We willreturn to that when we discuss apportionment. It is not realistic torequire people to register those rights, because in the real world itwould be difficult to make them do so. The measures will improve the availability of information about who isentitled to exercise the rights over a particular common. The provisionof such information will be for assistance only, as the informationwill not beconclusive.
Theregulation-making power in subsection (5) is an essential tool forobtaining the information that must be shown in registers undersubsections (1) to (4). The Government will consult on draft proposalsfor regulations under subsection (5), so some of these issues, whichthe hon. Gentleman has rightly raised, will be subject to debate underthose order-making powers and as those orders go through. However, wewill consult, as part of our commitment to consult, on the detailedimplementation of part 1 generally.
In respect ofthe hon. Gentleman’s question as to why we should“require” rather than “permit”, it must bepossible for regulations to require certain additional information tobe included in the register, rather than leave it to theauthorities’ discretion, for example, declarations ofentitlements to rights to which I have just referred. I hope on thatbasis, that the hon. Gentleman will withdraw hisamendment.

Roger Williams: I listened very carefully to the points that theMinister made. We may refer to the matter again later in Committee. Onthat basis I beg to ask leave to withdraw the amendment.

Amendment, by leave,withdrawn.

Questionproposed, That the clause stand part of theBill.

Jim Knight: The clause ensures continuity between theregisters prepared under the Commons Registration Act 1965 and thoserequired to be kept under this Bill. It provides that registrationauthorities may roll forward the existing registers and they willbecome the registers held under the Commons Act.
The clause provides clarityabout what can be included in the registers. It provides for the registers to include information about the extent of common land and town or village greens and rights of common and the attachment of suchrights to land, such as farm holding. It also provides for regulationsto amplify those requirements, as we have just debated.

Question put and agreedto.

Clause3 ordered to stand part of theBill.

Clause4

Commonsregistrationauthorities

Daniel Rogerson: I beg to moveamendment No. 95, in page 2, line 37, at endinsert—
‘(4) By agreement alocal authority may delegate its responsibility as a commonsregistration authority to another commons registrationauthority.'.
I addmy best wishes and I am delighted to be serving under yourchairmanship, Miss Begg. The amendment tabled by my hon. Friends the Members for Eastleigh (Chris Huhne) andfor Brecon and Radnorshire (Mr. Williams) and myself seeks to add alittle flexibility with regard to how commons registration authoritiesmay co-operate with each other in the exercising of their functionsunder the Bill. I, in my quick year as a Member of the House, have seena number of powers passed on to local authorities in all sorts ofareas. I am well aware, through talking to colleagues that are membersof those local authorities and indeed to officers, of the vast range offunctions that they are required to carryout.
Inevitably, somelocal authorities, acting as commons registrations authorities, willhave an area of specialism in such matters because they are responsiblefor large areas. I fear that I may refer to Bodmin moor a few timesduring our proceedings. Cornwall, my own commons registrationauthority, has large areas of common land and therefore has officesdedicated to dealing with it. However, I am sure that smaller or indeedurban local authorities have far fewer commons within their boundariesand therefore may not be able to devote resources to having specificofficer expertise to deal with commonsregistration.
The hopeis that if the Minister accepts the amendment, the commons registrationauthorities will co-operate. Those with more specialism could offer tosupport those that have less. Presumably, there would need to be someagreement on resources on that, should that be a problem. It wouldensure that landowners and people who have rights over common land, inwhichever authority the commons are based, would be able to haverecourse to specialist officers with the time and resources to resolveany issues that may need to be resolved. That would allow a sensiblepooling of resources and expertise so that all commons, their users andthe homes on them, will benefit from the advice and support ofspecialists.

Elfyn Llwyd: It is a greatpleasure to serve under your chairmanship, Miss Begg. I support theamendment, as it is logical and sensible. In effect, it is a slightextension of subsection (3). The hon. Member for North Cornwall madehis points well.
Wales has 22 districtauthorities. Some have only the tiniest of commons; others, such asGwynedd, Brecon and Radnor and Powys, have huge swathes of common land.It would be sensible to introduce flexibility into the Bill.
It was mentioned on SecondReading that in times gone by, land rights were the Cinderella serviceof local government. Very often, one or at most two people manned anoffice responsible for important rights such as grazing, ownership andso on. I am sure that we all want a system that will guarantee freeaccess to adequate and accurate information for members of the publicand registered owners of land and rights. For that reason, amendmentNo. 95 issensible.
The Ministerresponded helpfully to questions about additional funding for properoperation of the duties. That is obviously a key point, but someauthorities are already far more proficient at those services thanothers. I return to the Welsh example of 22 district councils. Do theGovernment honestly foresee 22 different registration authorities, or will there be sensibledelegation, which is eminently reasonable? For that reason, I fullysupport theamendment.

Roger Williams: I support my hon. Friend the Member for NorthCornwall as well. On Second Reading, many hon. Members made the pointthat they were pleased that the duties of the commons registrationauthority would remain with local government, and I support that. Partof the purpose of the amendment is to ensure that if a power is givento a local authority to use another organisation to carry out itsfunctions as a commons registration authority, that organisation wouldbe another commons registration authority, not an agency.
To help the Minister a littlebit, I can say that such informal arrangements are already carried outin Wales. The Swansea unitary authority and the Neath Port Talbotunitary authority share a commons registration officer. The Blackmountains in Powys are a series of contiguous commons for which thePowys commons registration officer also holds the registerforthe Herefordshire part. It is a transnational arrangement, not just across-authority arrangement.
Such arrangements happen inpractice. It would be good to put them into the Bill so that thatsolution would be available to local authorities. They could then makethe best use of the expertise available and give confidence to commonsowners, rights holders and the public that a good service is in placefor theiruse.

Jim Knight: I am grateful for amendment No. 95, and I amgrateful to the hon. Member for North Cornwall for acknowledging themany powers that have been passed down to local authorities in theexcellent spirit of delegation to local government that this Governmentbelieve in.
I alsoagree with the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) thatthe amendment is, in many ways, logical and sensible. Indeed, it is soperfectly reasonable that it is already the law, generally, relating tothe undertaking of local authority functions. Section 101 of the LocalGovernment Act 1972provides:
“a localauthority may arrange for the discharge of any of theirfunctions...by a committee, a sub committee or an officer of theauthority; or...by any other localauthority.”
As thingsstand, Mrs. Griffiths will continue to be able to act as the commonsregistration officer for Herefordshire, even though she is the officerfor Powys. In general, the purpose of the amendment is already a matterof law, which is why I resistit.
I have announcedfunding and support for an association to represent commonsregistration officers in England and Wales, so that they can exchangetheir expertise and improve it. Subsection (3) provides flexibility toenable one commons registration authority to assume full responsibilityfor an area of common land that straddles the border between twoauthorities’ areas. On that basis, I hope that the hon.Gentleman will ask leave to withdraw the amendment.

David Drew: Will my hon. Friendexplain what the default position is? If a registration authority isnot doing the job properly, what happens to an area that wishes to come out of that agreement?Presumably, a contract can be broken and a new one can be enteredinto.

Jim Knight: It is up to the local authority to make thedecision as to how it would delegate its functions within theauthority, or whether to delegate to another authority. Equally, it hasthe power to terminate the agreement at any time. I hope that thathelps my hon.Friend.
I hope that,on the basis of this useful debate, the hon. Member for North Cornwallwill ask leave to withdraw hisamendment.

Daniel Rogerson: I am grateful for the Minister’s kindwords on the spirit of the amendment. I acknowledge that the Governmenthave passed many responsibilities to local government, but whether theyhave passed with them the money to act on them is another matter. Nonethe less, I am grateful to the Minister for considering the amendmentin detail. I am pleased to hear that under the Bill, should it passinto law, local authorities and commons registration authorities willstill be able to co-operate and work together effectively and come upwith whatever agency agreement they feel to be appropriate. On thatbasis, I beg to ask leave to withdraw theamendment.

Amendment,by leave,withdrawn.

Questionproposed, That the clause stand part of theBill.

Jim Knight: The clause maintains the existing arrangements forcommons registration authorities. We believe that these functionsremain best undertaken at the county level in two-tier local governmentareas.

Question putand agreedto.

Clause 4ordered to stand part of theBill.

Clause5

Landto which Part 1applies

Questionproposed, That the clause stand part of theBill.

Jim Knight: The clause applies part 1 of the Bill to land inEngland and Wales, with exceptions made for the New Forest, EppingForest, the Forest of Dean and land exempted from registration by orderunder section 11 of the Commons Registration Act 1965, listed in anannexe in the explanatory notes, including Victoria gardens in Portlandin my constituency. The excepted areas set out in the clause areidentical to those excluded from the operation of the 1965Act.

Question putand agreedto.

Clause 5ordered to stand part of theBill.

Clause6

Creation

Questionproposed, That the clause stand part of theBill.

Jim Knight: This is the first of several clauses dealing withthe registration of dispositions affecting rights of common. Theseprovisions would require the registration of any disposition for it tobe effective in law. The clause sets out to ensure that the grant of anew right of common will not be effective until it has been registeredon application to the commons registration authority. It is essentialto regulate the grant of new rights in that way to ensure that theregisters are comprehensive of all rights of common exercisable overthe land and that no claim can be made to latent prescriptive rightsthat subsist over the land but have yet to be registered.
The clause makes it impossibleto create a right by prescription or to create a new right that is notattached to land. Abolition of the acquisition of rights of common byprescription ensures that there is certainty as to whether land issubject to rights ofcommon.

Roger Williams: Although we welcome the clause, subsection (6)gives a duty to a local authority to make a judgment and that judgmentwill be about whether it is possible to exercise or sustain theexercise of that rightor
“if the land isalready registered as common land, any other rights of commonregistered as exercisable over theland.”
We are worriedabout how the commons registration authority will reach a conclusion onthe matter. Whether a common is appropriately grazed, over-grazed orunder-grazed is often a contentious issue, and there will be as manydifferent opinions as there are people. I know that the Bill sets outlater that an appropriate national authority may appoint people tocarry out the exercise on behalf of the commons registration authority.However, we are concerned about the loss of the commons commissionersas set out in the debate on SecondReading.
In the otherplace, amendments were tabled on inspectors and other ways ofaddressing such issues, but we want to flag matters up at this stagebecause it is an onerous burden for local authority officers, electedmembers, ad hoc tribunals or whatever to have to make such judgments.We want to put in place a much more appropriate system for making thesedecisions.

Elfyn Llwyd: I have just one question for the Minister. We aretalking about the creation of rights. In our debate on Second Reading,we referred to estovers, pannage and piscary. One thing that worries meis that the notes on clauses make no reference to turbary. I did notsay that to raise a laugh in Committee. It is an important right forpeople in my area. They still dig peat and use it for domesticpurposes. Will the Minister confirm that that was just an oversight andsay that there is no intention to extinguish the registration of suchrights, which are still important in many uplandareas?

Jim Knight: I will reflect on turbary rights, while I respondto the point made by the hon. Member for Brecon and Radnorshire. Thelocal authority, acting as the commons registration authority, willperform its duties in a quasi-judicial form, much as it does in respect of planning. From my experience of chairing a planning committeeon a local authority, I recall that issues were often controversialwith views held strongly on both sides. I have no reason to doubt thatthat was anything but thenorm.
Localauthorities are in a good position to perform such duties as long asthey are performed subject to advice. In the same way, when theyperform their duties as a planning authority, they carry out thosefunctions with advice. We have made it possible for those authoritiesto take advice on technical issues under part 1, and we amended theBill in another place to introduce a power to require it to consultunder clause 24(2)(h).
I hope that, on that basis, thehon. Gentleman is reassured that we consider local authoritiesperfectly able to perform that function. If the issue is sufficientlytechnical that they do not feel that they have the expertise, despitethe investment in expertise that the Government are making, they canrefer it to the panel. We will discuss that later when we discuss thewisdom or otherwise of replacing commons commissioners under thearrangements set out.
For those who need anexplanation, turbary is defined in annex A of the explanatory notes. Ifthat is not adequate, I can write to the hon. Member for MeirionnyddNant Conwy (Mr. Llwyd) but he is indicating that he is happy with it. Ihope that the Committee will support clause6.

Question put andagreedto.

Clause 6ordered to stand part of theBill.

Clause7

Variation

Questionproposed, That the clause stand part of theBill.

Jim Knight: The clause has the same broad purpose as clause 6.It requires the registration of any variation in a right of common. Ifthe variation is not registered, it will not be effective in law. Theclause will ensure that registers are comprehensive on the nature andextent of any rights to thecommon.

Questionput and agreedto.

Clause 7ordered to stand part of theBill.

Clause8

Apportionment

Questionproposed, That the clause stand part of theBill.

James Paice: I will let the Minister catch up with himself. Hewas making excellentprogress.
The issuethat I wanted to address during the debate on clause 8—it alsoimpinges on clause 9, but I shall not raise it again—is what hassometimes been called local severance, which is linked to the questionof apportionment in clause 8. Paragraph 50 of the explanatory notescontains an example of a common that is subject to rights to graze 100 sheep and that is divided equallybetween two farms A and B. The notessuggest:
“Theowner of Farm A dies and the farm is divided equally between thatowner’s two children. Two new dominant tenements A1 andA2”
will each have theright to graze 25 sheep. It goes on tosay:
“Farm B issold to a developer who in turn sells it off in 50 plots, each with ahouse built on it.”
Underthe rules and regulations, the owners of each of those houses
“will be able to show that theyoccupy 1/50th part of the area of the historic dominanttenement B, and (applying the rules of pro rata apportionment)therefore each has attached to it 1/50th of the rightsrecorded as attached to historic dominant tenementB”—
namely, onesheep.
That sort ofthing undermines the integrity of the commons and the credibility ofthe system. As I understand it, that is what must happen under the Billas it is drafted. There is no alternative, as somebody once said. Theexample prompts some detailed questions. Obviously, not all thosehouses will occupy exactly one fiftieth of the original area. We mightget into serious fractions of sheep, because some houses occupyslightly more square metres than others, but I set that pointaside.
Although such asituation could happen in many different scenarios, I raise an ideasimply to get the Minister’s response: there should be a systemwhereby the developer who bought plot B ought to be able under certaincircumstances to sever the rights from all the modern houses and giveor sell them back to the association, or make them available for otherrights owners to acquire. That would keep those rights in the hands ofpeople who seriously want them rather than in the hands of those peoplewho buy houses and end up with the right to one sheep.
I accept that, in somecircumstances, development might mean that house owners would end upwith a number of rights that would have a value. I am not suggestingthat anything should be compulsory, but the developer should have anopportunity to sever the rights. As long as the rights remain on thecommon and must go to a rights holder with a dominant tenement of thecommon, all the principles that the Bill is trying toespouse—principles with cross-Committee and cross-Housesupport—will be retained without leading to the somewhatludicrous and extreme outlined in the explanatory notes, whichnevertheless can and, indeed, does happen. I raise this matter to get aresponse from the Minister at this stage, because it requires furtherinvestigation.

Roger Williams: I share some of the hon. Gentleman’sfeelings, but I take some comfort in DEFRA’s advice onidentifying the ownership of rights of common, which states:
“In theDepartment’s view, an apportionment giving rise to a fractionalgrazing right of less than one animal will beunexercisable.”
I am surethat the animal, at least, will be grateful for thatadvice.

Jim Knight: I am grateful to the hon. Member for South-EastCambridgeshire for allowing me to catch up. I think that it would behelpful if I explained a little bit about how the clause works; itdeals with the apportionment of rights of common and enablesregulations to be made to deal with the circumstances and the way inwhich the apportionment may beregistered.
Apportionment,for those who are not familiar with the term, is used to describe whathappens to land to which rights of common are attached—a dominant tenement—when it is divided into two or more parcels in separateownership. For example, that may occur when the owner sells only partof his farm holding and retains the remainder. Traditionally, where aland holding is divided between separate new owners, the rights ofcommon attached to that land must be divided between the new owners inproportion to their share of the land, as we have heard in relation tosheep.
I say to thehon. Member for South-East Cambridgeshire that there is an alternative.It is set out in clause 11, which, as we will perhaps discuss, enablesa right of common attached to a dominant tenement to be concentrated onpart of the dominant tenement, where another part is to be developedfor non-agricultural use. I hope that that satisfieshim.
Clause 8 providesthat regulations may enable the registration of apportionment, butsubsection (2) implies, as is our intention, that regulations will notrequire apportionment to be registered, as we discussed in respect ofan earlierclause.
Somestakeholders have asked why we do not ensure the mandatory registrationof apportionment. The answer is a little complex, but to summarise:first, we do not think it possible to require apportionment to beregistered, because there is no sensible sanction that could be appliedin default, nor any likelihood of its enforcement; and secondly, thecommons registers will not show who owns and occupies the land to whicha right is attached. There is little point seeking to registerapportionment, because there will be nothing to change in the registerin consequence of it. The reality is as the hon. Member for Brecon andRadnorshire described it during the debate on clause 3 in respect ofthe Land Registry. We have undertaken to explore whether regulationsunder clause 4 can enable commoners to make a declaration ofentitlement to exercise rights of commonÂ that would be includedin the register as additionalinformation.

James Paice: I am grateful to the Minister for giving way, but Iam going to challenge him, because I am not entirely convinced thatclause 11, to which he has drawn my attention, addresses the issue thatI raised and that is raised in paragraph 50 of the explanatory notesthat describes the scenario of the whole dominant tenement beingdeveloped. Although I am happy to be proved wrong—I am notconvinced that I am—clause 11 refers to the “relevantpart” being developed. If there is no remaining part, I cannotsee how the rights can be concentrated upon it if the whole site isdeveloped. Perhaps the Minister could comment or reflect onthat.

Jim Knight: I am happy to reflect on that. My reading ofclause 11 concurs with the hon. Gentleman’s: it refers to a part, not the whole, of the dominanttenement. I confirm my initial thinking that if the whole dominanttenement is developed, clause 11 does not apply. I shall reflect onwhether the loss of the dominant tenement in its entirety means thatthe owner should be entitled to hang on to the rights if he sold up andmoved away. We are trying to ensure that commons have that localassociation. If the owner has gone, that association may belost.

James Paice: I certainly want to reassure the Minister that I donot want the owner to run off and keep the rights.[Interruption.] As I was saying, Miss Begg, I assure theMinister that I do not want the owner to run off and keep the rights.When the whole of the land is to be developed, there should be amechanism for reallocating to other rights holders who have dominanttenements for thatcommon.

Jim Knight: I shall reflect on that, as I will on howunder-grazing, which I think is the concern of the hon. Gentleman,would be best dealt with. If I decide not to come back to such matterson Report, I shall drop a line to him and other members of theCommittee to let them know the outcome of mydecision.

Questionput and agreedto.

Clause 8ordered to stand part of theBill.

Clause9

Severance

Questionproposed, That the clause stand part of theBill.

Jim Knight: The clause effects a prohibition on the severanceof rights of commons with the exceptions set out under schedule 1. Theclause ensures that a right of common that is attached to land is notto be permanently severed from that land, as we have been discussing.Severance means that the local link between the commoners and the landover which the grazing rights are exercised might be lost since theowner of the rights can sell them to anyone, including farmers who livefar away from the common. That can cause management difficulties forcommon land when some rights holders have no close contact with thecommon and those who manage it. There is overwhelming support fromstakeholders for a prohibition on severance under theBill.

Question putand agreedto.

Clause 9ordered to stand part of the Bill.

Clause10

Attachment

Questionproposed, That the clause stand part of theBill.

Jim Knight: In common law, it is impossible to convert a rightin gross into an attached right—by that, I mean turn a severed right into an attached right. The clause enablesrights of common held in gross to be attached to land. It will providea mechanism by which rights can be reattached, but there is nocompulsion. An application must be made by the owner of theright.

Roger Williams: I understand the benefit of converting rights ingross to rights attached to land, but the clause refers to“any” land. The Minister has already said that if therights that are attached to land are local, there is benefit tomanagement of the commons. How does the Minister reconcile thatposition?

Jim Knight: My reaction to the hon. Gentleman’sinteresting point is that, under clause 10(2), the application is tothe commons registration authority, which would have to judge whetherit is in the interest of the common for that land to work. It would besurprising if the registration authority were to attach it to adominant tenement that is remote from the common. Our expectation isthat that would be done in the public interest and attached to thecommon.

Questionput and agreedto.

Question 10ordered to stand part of theBill.

Clause11

Re-allocationof attachedrights

Questionproposed, That the clause stand part of theBill.

Jim Knight: The clause enables a right of common attached to adominant tenement to be concentrated on part of the dominant tenement,as we discussed in respect of clause 9. That will enable the commonersto retain the full use of their rights when part of their farm holdingis sold for development or acquired under compulsory purchasepowers.

Questionput and agreedto.

Clause 11ordered to stand part of theBill.

Clause12

Transferof rights ingross

Questionproposed, That the clause stand part of theBill.

Jim Knight: The clause requires a change in the ownership of aright of common that is held in gross to comply with prescribedrequirements. If it helps the Committee, lawyers call a right held ingross “incorporeal hereditament”, a term with which I amsure the hon. Member for Meirionnydd Nant Conwy, if no one else, isfamiliar.

Questionput and agreedto.

Clause 12ordered to stand part of theBill.

Clause13

Surrenderandextinguishment

Questionproposed, That the clause stand part of theBill.

Jim Knight: The clause provides for the surrender of a rightof common to have effect only when the right is removed from theregister following an application to the commons registration authorityby the person entitled to the right. Again, that is about ensuring theintegrity and reliability of theregister.

Questionput and agreedto.

Clause 13ordered to stand part of theBill.

Clause14

Statutorydispositions

Questionproposed, That the clause stand part of theBill.

David Maclean: I congratulate theMinister on taking this Bill forward. When I was Environment Ministerin the 1990s, we looked into commons law, and I was advised by theFederation of Cumbria Commoners that it was important that it be tidiedup. Then I listened to the wise advice of my officials in theDepartment, who said, “For God’s sake, Minister,don’t touch this with a bargepole; it’s anightmare.” So I congratulate the Minister on having the courageto tidy up the law; we support what he is doing. I also congratulatehis officials, who, I believe, have been to Cumbria on a couple ofoccasions to meet the Federation of Cumbria Commoners. Cumbria’sfederation is one of the largest in the country, and Cumbria has one ofthe largest patches—or lots of patches—of common land inthe country.
AlthoughI have been briefed by that organisation, I apologise to the Ministerif I do not do justice to the complicated brief that I have beenseeking to understand. I wish to raise points about the regulationsthat may be made under the clause. The Government have stated that thepurpose of the Bill is to provide accurate and up-to-date commonsregisters to underpin commons management, through a duty on localauthorities to update and maintain the registers of common land, and toprovide that future transactions have no legal effect unless they areregistered. The problem is that the Bill does not do that completely;it is only 95 per cent. there.
The Bill will be conclusive onwhat land rights attach to, and on the ownership of those rights ingross. But the register will not be updated or maintained to show whoowns the vast majority of rights—those that are attached. TheGovernment acknowledge that, and they rightly comment that it is notpossible for both the Land Registry and the commons register to beconclusive about the ownership of the dominant tenant. The federationagrees, but does not see a problem with requiring all transfers to benotified to the commons registration authorities. The registers havenever given proof of ownership, but if they are not kept up to date,they are useless for management purposes when commoners need to belocated. Also, significant costs will accrue to the Government andcommoners in cases in which identifying and communicating withcommoners is essential—for example, in respect of applicationsto establish statutory commons associations, applications for environmental stewardship schemes, applications to undertake works oncommons and compulsory purchaseprocedures.
In theother place, the Government argued that there can be only onedefinitive record of ownership. Otherwise, which would take priority ifthere were inconsistencies between the Land Registry and commonsregister entries? The reason is undoubtedly correct; even I understandand agree with it, and that is what the federation says, too. However,it also says that that should not prevent the making of a requirementthat transfers of rights be notified—notified only—to thelocal authority and perhaps be accompanied by a certificate from theLand Registry, or something like that. The commons registers would notbe proof of ownership, but they would have all that informationattached to them, so at least they would then be useful workingdocuments. Without such up-to-date records, otherschemes—applications for commons associations and environmentalstewardship schemes—would become very difficult to set up. Thatwas recognised in the otherplace.
I want toconclude by pressing the Minister to state in this place what hiscolleague Lord Bach said in the other place when pressed on a similarissue. Hesaid:
“I acceptthat we should try to make the commons registers as helpful as possibleto those who do not need conclusive proof of the matters but who wishto have some idea of entitlement. We therefore intend to explore, inconsultation on implementation of Part 1, whether regulations shouldprovide that a declaration of entitlement to exercise rights can beincluded in the registers. I must stress that such a declaration couldnot and would not be conclusive or binding on any person, but it may behelpful that such information can be entered on the register, with anappropriate caveat. We will also consult on whether other informationcould be noted on the registers at the discretion of the registrationauthority, such as Land Registry title numbers and the identity of theowner of the dominant tenement when the authority last sought thatinformation from the registeroftitle.”—[Official Report, House of Lords, 25October 2005; Vol. 674, c.GC315-16.]
It has been a weewhile since that debate in the other place when Lord Bach made thatcomment. I hope that the Minister will be able to say today that theGovernment’s thinking has moved forward—that theintention to consult has firmed up a bit, or that the Government havedone some preliminary consultation and come to a conclusion that thatis a route down which they wish togo.
I want anassurance from the Minister that regulations will be made under thelegislation that enable dealings with the owner of the dominanttenement to be at least recorded on the commons register with asufficient sanction imposed for any failure to notify, so thatnotification becomes the standard conveyancing practice. When rightsare bought or sold and the Land Registry is informed, the registrationauthority should be automatically notified so that the commons registercan be similarly annotated or updated—I probably should not say“annotated” as that probably has some technical legalconnotation. An assurance on that from the Minister would make us veryhappy, and the Cumbria Federation of Commoners would be delighted thatI may have got the point across halfsensibly.

David Drew: I am delighted to serve under your chairmanship,Miss Begg.
I do not intend to dwell on thissubject. However, the right hon. Member for Penrith and The Border(David Maclean) referred to a debate in the other place, and I wouldlike to address another aspect of the matter, which was an amendment ofLord Greaves on how to fast-track a registration of a common or avillage green. Through my noble Friend Lord Bach, the Governmentpromised to look into how that might be achieved. I know that they havedone so, but I am a little uncertain about what their position is inthis regard.
Let usaddress a possible scenario. Someone in their later years might wish topass over a piece of land that has been used for many years for acertain purpose—the example of cricket use has been offered. Itmight have been used for that purpose for more than the 20years—that seems to be the key period—but if that personhappens to die before the land is passed over, according to theexisting law, it cannot be seen as either a common or a village green.I wish the Government to make it absolutely clear that there is amechanism whereby if someone wishes to pass a piece of land over foruse by the people for the people that is now possible and that we donot have to wait for the so-called statutory 20 years for that to beachieved. I would be grateful if the Minister could clarify exactlywhat resulted from the debate in the otherplace.

Jim Knight: We have had a wide-ranging debate. I assure theright hon. Member for Penrith and The Border that according to myunderstanding, his understanding is entirely up to scratch. He shouldhave no worries on thatscore.
It wouldprobably be ideal for all transfers to be recorded as he suggested, butI explained earlier that enforcing such a requirement would bedifficult. We are enabling it because we recognise that it would behelpful for the register to indicate who is entitled to exerciserights. I do not want to disagree with a single word that my nobleFriend the Lord Bach said in the other place. We will enable commonersto enter a supplementary note on the register declaring theirentitlement to exercise rights. The declaration will not be conclusive,but might be informative.
We are also exploring thepossibility, which I hope the right hon. Member for Penrith and TheBorder will welcome, of providing in regulations under the Bill that acommoner need not be consulted on any matter affecting the commonunless he has declared his entitlement to those rights. We areexploring that at the moment. It would be an incentive for thosetransfers to be properly registered. If they are not, ownership ofrights and entitlements can be traced back through the Land Registry,but we agree that ideally it would be better to record that informationon the register. That is what we seek to achieve, but we cannot foreseea scenario in which a requirement to do so could be enforced. If,having read what I said earlier, the hon. Gentleman writes to me with away to do so, I will be happy to look atit.
I turn tofast-track registration of town and village greens. Subject to thepassage of the Bill, it will be possible for an owner to dedicate a green underclause 15(7)without further formalities. I hope that that satisfies my hon. Friendthe Member for Stroud (Mr. Drew). We might discuss it very soon when wemove to clause 15 and itsamendments.

Questionput and agreedto.

Clause 14ordered to stand part of theBill.

Clause15

Registrationofgreens

Jim Knight: I beg to move amendment No. 1, in page 7, line 24,leave out ‘or (3)' and insert ‘, (3) or(3A)'.

Anne Begg: With this it will be convenient to take thefollowing: Government amendments Nos. 2 to5.
Amendment No. 43,in clause 15, page 7, line 44, leave out subsection(5)(b).
Governmentamendment No.6.
Amendment No. 44,in clause 15, page 8, line 4, leave out subsection(6)(a).
Amendment No.45, in clause 15, page 8, line 8, leave out ‘two years' andinsert ‘oneyear'.

Jim Knight: The amendments respond to a concern raised byConservative Front-Bench Members on Third Reading in another place thatland on which houses had recently been built might meet the criteriafor registration as a green under the clause. That situation mightarise if land had already been used as of right by local inhabitantsfor lawful sports and pastimes for at least 20 years before thedevelopment took place. It would be an unusual circumstance, but itwould be unacceptable if the clause were to allow the registration ofland where houses stand today. The amendments will prevent that fromhappening. If land was covered by a building or its curtilage on 18April 2006, the date the amendments were tabled, it will not beregistrable.

Paddy Tipping: I am sure that the word“curtilage” has a good deal of legal significance.Presumably it applies to gardens, outbuildings and paddocks. Inprinciple, therefore, it could mean quite a large take of land. Can theMinister explain what curtilagemeans?

Jim Knight: I am grateful to my hon. Friend for offering methe opportunity. A judicial decision on the meaning of curtilage wasgiven in the Court of Appeal in 2000. He will recall, being a representative of Nottinghamshire, that the case was Skerritts of NottinghamLtd v. Secretary of State for the Environment, Transport and theRegions. The court held that land is considered to be within thecurtilage if it is part and parcel of the principal building or otherstructure. Land is within the curtilage if it is owned and enjoyed withthe principal building and can be regarded as ancillary to it. It is aquestion of fact and degree in each case, and examples include a yard,basement area, passageway, driveway and garden, which are intrinsicallypart and parcel of the house. If houses have been built on one part ofa larger area of land that has been used as a green, one would not expect the whole ofthe land to be regarded as the curtilage of the houses. If such houseshad physical enclosures around them to create their own space, theircurtilages might well be taken to be defined by those enclosures, butthose curtilages would not extend to the rest of the land. I hope thatthat is helpful to my hon. Friend.
Several hon. Membersrose—

Jim Knight: I give way first to my hon. Friend the Member forSherwood (PaddyTipping).

Paddy Tipping: I know Skerritts, and am grateful for thedescription. However, this matter leads to difficulties. We have tolook at issues on a case-by-case basis. Clearly, a paddock at the endof a garden might or might not be within the curtilage of a building,depending on the history. We shall need to reflect on the issue alittle more, because it will becomecontentious.

Jim Knight: I am glad to say that I am not a lawyer, and Ihesitate to go much beyond my brief in trying to define whether apaddock is curtilage. My lay person’s view is that a paddock isancillary to a stable or other land on which horses are kept, but notto the principal building. However, as I say, I am not alawyer.

Paul Truswell: At the risk of being obtuse,may I pursue the Minister over the definition of a building? Is abuilding a house, barn, store, cattle shed, shelter orbirdwatchers’ hide? Are we talking about any sort of building?If so, will that not cause further problems, given that buildings mightbe erected to thwart town greenapplications?

Jim Knight: I feel a note coming on. The key phrase that Iused—and that I understand was used in the judgment of2000—was “principal building”. A shed, greenhouseor stable would not be regarded as principal. The definition ofbuilding is used in everyday speaking terms. I suggest that my hon.Friend should focus on the phrase “principal building” inthinking about thisissue.

Tom Levitt: I hope to catch your eye later,Miss Begg. I should like to raise a particular local issue.
In the Minister’s view,is a graveyard curtilage? Would it make a difference if the graveyardwere fully occupied? If the chapel to which the graveyard was attachedwere derelict, would that make adifference?

Jim Knight: My hon. Friend raises a fascinating question, onwhich I shall reflect. Perhaps a graveyard is curtilage to a church,the church being the principal building. However, I need to givefurther thought to that.

James Paice: I thank the Minister for giving way. I want to getback to the word “building”. My question will not be asobtuse as some others. Does “building” mean a completedbuilding? Bearing in mind that the designation of the land is triggered on a specific date, therewill—I have been told of examples—be buildings underconstruction to which the clause would apply. Clearly, we need toclarifythat.

Jim Knight: I am grateful to the hon. Gentleman for askingsomething about which I have thought. Any particular case would be amatter for interpretation on all the facts and evidence, but ourgeneral view is that if a building was already in the course ofconstruction on 18 April 2006, it would be covered by the exemption, aswould any curtilage set out for it on the planning consent. If it hadgot no further than a few trenches or drains, that might be a differentmatter. If a start had been made on erecting the fabric of thebuilding, we think that it would be exempted under the formulation.That would not apply to other buildings that were scheduled under thesame development but had not yet been constructed on that date. Thepurpose of amendment No. 4 is to come to the assistance of buildingsthat already existed on 18 April, rather than to help implement partsof planning consents that had not by then beenimplemented.

David Drew: This intervention is germane to that point. One ofthe problems with the planning system is that someone could havereceived permission for a building many years before and they can provethat they have started its construction. My hon. Friend the Member forHigh Peak (Tom Levitt) asks what we mean by “underconstruction”. If someone wanted to prove the point, the factthat someone has laid a brick might mean that a building was underconstruction. Subsequent to that, the piece of land might have comeinto common use. How does one overcome that dichotomy? The originalpermission might have been granted but the present use is as a villagegreen or as a piece of common land. Who can resolve that issue and howcan that be done?

Jim Knight: As I said in response to the hon. Member forSouth-East Cambridgeshire, any particular case would be a matter forinterpretation of all the factors and the evidence. One would hope thatthe registration authority and any other body, if the matter werereferred elsewhere—ultimately these things are challengeable byjudicial review—would examine the facts and the evidence in theparticular case. If the view was that planning consent had been givenbut had effectively lapsed and instead the land was then used as agreen, perhaps it would approve the application. The amendment that weare discussing could therefore be put to one side. Such a decisionwould be made on the basis of the facts and the evidence in thecase.
Prior to thatflurry of debate and interest, I was detailing the Governmentamendments. To give effect to the principle that we have justdiscussed, we have restructured the clause slightly. We think that isworth doing, even though it requires six amendments. Essentially, theexisting subsection (3) would deal with cases where use “as ofright” is ended after commencement of the clause, whereasproposed new subsection (3A), introduced by amendment No. 4, deals withcases where such use had already ended before commencement. I can gothrough that in more detail should hon. Members wish me to do so, but Ihope that my comments have proved sufficient. The remaining amendmentsare consequential on the restructuring we have done, and have no widereffect on the outcome.
Amendment No. 43, tabled by thehon. Member for South-East Cambridgeshire, would omit subsection(5)(b), which says that where there has been 20 years’recreational use of land as of right by local people, the subsequentgranting of permission for them to use the land does not end thequalifying use. I cannot accept the amendment, because it is based on apresumption that we believe to be wrong, which is that the owner of anarea of land that has had that kind of long-standing pattern of use“as of right” should be able to remove the registrabilityas a green by, for example, putting up a welcoming sign on the land.That kind of action does not put the local inhabitants on notice thattheir future ability to use the land is underthreat.

James Paice: Obviously, I have not reached the point with myargument yet. I am afraid that even with the subsequent groups ofamendments there will be some crossover in this debate. The Ministerused a word that is not in the clause. He referred to situations wherethe landowner “subsequently” does something to grantpermission. That is not referred to in subsection (5)(b); there is nosuggestion that it was subsequent to theright.

Jim Knight: The course of events—the sequence—isvariable. My reading of things is that we must account for subsequentaction. Does that help the hon. Gentleman.

James Paice: I am grateful to the Minister. No, it does notreally, because the point I am making now and in amendment No. 47 isthat when the owner may have consistently given consent, on theunderstanding that it was not giving rise to permanent rights, it isunreasonable, and contrary to human rights, that that owner’sinterests should be taken away.
I agree entirely with the hon.Gentleman’s response to my amendment, which is that someoneshould not be able to plonk up a sign after 19 and a half years andsay, “I have let you have it out of the goodness of my heart forall this time, but now you cannot have it as a village green.”Of course that would be an abuse. However, the provision is actuallyremoving retrospectively something that may have been permissive allthe waythrough.

Jim Knight: I am grateful to the hon. Gentleman for hiscomments. It may be helpful if I listen to his argument in favour ofthe amendment and then I may have the opportunity to address mattersmore fully. Amendments Nos. 44 and 45 were also tabled by the hon.Gentleman. In a situation where 20 years' qualifying use of land has been ended, for example, by excluding people, clause 15 allows a period of grace during which application may be made to register the land as a green. A period is normally two years, but is to be five years in a case where qualifying use ends before the clause takes effect. Those two amendments, taken together,seek to replace the two periods with a single period of grace of oneyear in all cases.
The Government resist theprinciple of shortening the period of grace because, if long-standinguse is ended, there needs to be a fair opportunity for application.There is much to do before a viable case for registration can be made,as my hon. Friend the Member for Pudsey (Mr. Truswell) outlined duringour debate on Second Reading.
Local people have to find outthat that area of law exists. It is not everyday knowledge that it doesexist. They must then get hold of the guidance material and assesswhether their circumstances are likely to meet the stringent criteriafor registration. If so, they must find a range of witnesses to thequalifying use of the land and collect all of their detailedstatements. They must then bring the statements and supportinginformation together in the prescribed form in a proper application tothe authority.
Peoplelead busy lives. They are usually doing the work in their spare time oron a voluntary basis. They can not just drop everything and concentrateon getting their local green registered. In addition, under thecustomary law, any freestanding period of use would potentially havebeen enough to get land recognised as a green, even if there had been asubstantial interruption to use since. Clause 15 tightens that upconsiderably so that there will only be a limited window for localpeople to act before it is too late to register the land. However, Ifeel that we have gone as far as we intend to go, and as is reasonable,in imposing such alimitation.

Anne Begg: It would be useful now to discuss the remainingamendments to the clause. Therefore, it is convenient to take also thefollowing amendments: No. 42, in clause 15, page 7, line 24, at endinsert—
‘( ) subsection (1)does not apply to land for which atcommencement—
(a)planning consent has been granted,or
(b) an application forregistration as a town or village green has been refused within aperiod of fiveyears.'.
No.46, in clause 15, page 8, line 14, at endinsert—
‘( ) before agreeingto register any land the registration authority must take reasonablesteps to inform the owner of any part of the land and consider whetherthe owner(s) has taken reasonable steps to prevent the land being usedas described in subsections (2) and(3).'.
No.47, in clause 15, page 8, line 14, at endinsert—
‘( ) beforeregistration of any land the registration authority must considerwhether the owner(s) of that land shall be able to show that the usersof the land were informed throughout the period that consent to suchuse was temporary and would not give rise to permanentrights.'.

James Paice: That is a wise decision, Miss Begg. It means thatall the remaining amendments stand in my name. Clause 15 is probablythe most controversial aspect of the Bill. Obviously I, as did theMinister, listened to the debate on Second Reading. I will give way ifthe hon. Member for Pudsey thinks that I am misrepresenting him, but hewas using the debate as the last opportunity—the fall-backposition—to prevent a piece of land from possibly being used for development if people hadbeen using it to exercise their “lawful sports andpastimes”, which is a funny choice ofwords.
Most of usaccept and agree that there are lots of pieces of land that, asregistered village greens, would be a huge addition to the community.Therefore, we wholly support the principle of being able to registernew land as a village green. Nevertheless, as Members of this House, wemust find the right balance between the rights and needs of society andof the owner. It would be easy to couch this debate in terms of a localcommunity against some rapacious developer. I do not doubt that thereare examples of rapacious developers who have sought to build on whatmost people would consider to be a village green. However, there willbe many more examples in which the land is not owned by a rapaciousdeveloper, but by, for example, a small village builder or an elderlylady who has left it there for years thinking that it would be a placefor her son or grandson to build a house.
There are all sorts ofpermutations and possibilities for the type of the land that we aredebating. It would be regrettable if we couched the debate purely interms of large-scale development.

Paul Truswell: I have listened with interest to the hon.Gentleman’s comments following his reference to my contributionon Second Reading, and I take exception to his use of the term“fall-back position”. On Second Reading, I explained thecircumstances around Yeadon Banks. Local people had used the land inquestion for generations. It had been green belt land, ceased to be asresult of the unitary development plan process and the public inquiry,and therefore the local community felt that the planning process hadfailed to help them retain that piece of land. When they discoveredthat they could apply for town green registration, they started thatprocess. So it was not really a fall-back position, but an attempt toprotect land that had been used forgenerations.

James Paice: I am happy to accept the hon. Gentleman’scorrection of my understanding of his words. Clearly, I do not haveknowledge of his particular constituency case, and nor shouldI.
My general pointremains: there is a whole raft of possible scenarios for the type ofland to which we are referring, and we must not carry out this debateon the basis of one particular perception. We have a responsibilitytherefore to find a balance between those rights and needs of societyand a community, and the owner of the land—whoever he, she or itmight be.
I readilyaccept that the amendments are designed to tilt the balance backtowards the landowner slightly—although not excessively. I amsorry that the Minister concluded his opening speech by saying,“That is as far as we intend to go.” Perhaps that is hismarker, but I hope that he will listen to and consider mypoints.
AmendmentsNos. 44 and 45 address the period in which an application can be made.In fact, amendment No. 44 will fall, given that we are likely toapprove the Minister’s amendment No. 6 which deletes the wholeof subsection (6). He has achieved what I tried to do with amendmentNo. 44, although he has reintroduced the five years provision in amendment No. 4. I must challenge that. Fiveyears is a very long time, and if the public, or“inhabitants”—the word used in theBill—have been using land as of right for 20 years, it isastonishing that that use may stop five years before completion of anapplication.
Actually, I do not agree withthe Minister’s pleadings that two years is necessary for anyother case. A year is still a long time, and if people feel stronglyabout the need to protect their land, one year is a more than adequateperiod in which to complete the application with all the relevantdetails—I think that the Minister rather over-laboured theproblems with getting that information in place. I challenge himparticularly on the five years. If people ceased using land five yearsago, I cannot for the life of me understand why they should then havethe whole of the five years to put in the application. I cannot see thejustification in such action, nor can I even envisage an appropriateexample.
I shall moveon now, Miss Begg, to the other amendments that you rightly suggestedwe should also debate. Amendment No. 42 goes back to the discussionthat began with a series of interventions on the Minister’sspeech. I welcome the Government’s amendments which, as theMinister rightly said, were tabled in response to issues raised by mynoble Friends in the other place. I am also grateful for his coming upwith the principle of proposed subsection(3A).
When answeringthe question about a definition of a building, the Minister said that,if it meant only that the odd ditch or two had been dug, that might notapply. It certainly would not apply to other properties on thedevelopment that had not been commenced. I am grateful to see theMinister nodding. Some examples of developments being under way havebeen drawn to my attention. As he knows, a development is, to use anold-fashioned Labour word, a composite. Its infrastructure is the roadsand utilities. It is integrated. If we then say to the developer thatthat section cannot now be built, it will throw the rest out ofproportion. It means that the roads are in the wrong place and the costof the infrastructure that the developer will have planned to shareacross all the properties will have to be shared among the fewerproperties that can be built or have been completed. There might not beany properties. Therefore, the Minister is wrong to suggest that thebuilding has to be well under construction before the clause ceases toapply. He should go back a stage ortwo.
The other matteris cost. Again, examples have been drawn to my attention. For obviousreasons, the individuals concerned do not want me to announce who theyare because they are carrying out developments at present. Manyhundreds—if not millions—of pounds have been spent bybusinesses and local authorities on public inquiries. In some cases,development has commenced but not completed, yet the Minister isproposing that all that money could be lost at huge cost to thebusinesses because someone might apply for a village green. In fact, inone case a person did apply for a village green under the currentlegislation. The application was lost. The matter then went to publicinquiry. The developers won planning consent and they are two thirds ofthe way through the development. They will lose the other third on the basis of the discussion that we have just had. Although I cannot speakfor them, there is likely to be a law suit against the Government inrespect of the costs that have beenincurred.
Despite hisclosing remarks, the Minister needs to consider matters further. Wemust bear in mind a major planning proposal, especially when a grouphas already applied for registration as a town or village green thathas been refused within a recent time. In amendment No. 42, I used thesame five-year period that the Minister used and I am happy to reduceit to a much lesser period if he will do so under his amendment. Heneeds to think more about the balance between the two situations,especially given that there could be major legal disputes andchallenges against the Government if they continue acting as they havebeendoing.
I would alsomake the smaller point that often a development is about not justhousing but community services. There may even be—althoughprobably not that often—a new post office, or certainly acommunity centre. It would be pretty ironic if the community centre wasnot allowed to be built because it happened to be the last thing on thedevelopment schedule to be built. The houses would be put up, but notthe community centre that was part of the development, and so, becauseof the Bill, the community would lose out on its community centre. TheMinister needs to take the provision away and look at it a little morecarefully.
I come toamendments Nos. 46 and 47. I shall refer to notes that I expect otherhon. Members have also received from the Country Land and BusinessAssociation. It refers to the common land policy statement that theGovernment issued in 2002, in which they proposed
“introducing a formal mechanism bywhich landowners could clearly indicate that, although use of the landmay continue for the time being, the nature of the use has ceased tomeet the criteria for registration as a town or village green. Anyfurther use would be by general permission of the owner. There wassupport for providing a clear and unambiguous mechanism for making thepublic aware of their position and we plan to do so. This will requireprimarylegislation.”
Unfortunately,that has not found its way into the Bill, but it is the genesis ofamendments Nos. 46 and 47. Both of them simply require the registrationauthority to consider two possible actions that the owner of the landmay have taken before the authority agrees to register. The first istaking action to prevent the land from being used by putting up somesort of fencing or security system. To come back to the point that theMinister made about amendment No. 43, I certainly agree that the ownershould not be allowed suddenly to come along, 19 and a half years afterthe public started using a piece of land for lawful pursuits, and stopthat use, and expect to evade the requirements of clause 15.
However, on amendmentNo. 47, what if someone has a piece of land and expects, or is happyfor, people to walk across it, walk their dogs on it or play ball onit, but wants to retain their interest in the property? Of course, onceit becomes a village green it is effectively of no value to theowner.

Jim Knight: To help the debate, in respect of amendment No. 43, the supplementary words are significant. Subsection (5)(b), which the hon. Gentleman seeks to remove, applies only when subsection (2)(a) applies—that is, after 20 years have passed. With the leave of the Committee, I will respond to the other amendments later, including No. 47. But I hope that my interpretation of amendment No. 43 is helpful.

James Paice: I am grateful to the Minister. Perhaps while he is replying to the other amendments, I will have a think about that reply. He is right that we need our debates to be as constructive as possible.
I stress that under amendment No. 47 I am referring to cases in which the users of the land were informed throughout the period that consent to such use was temporary and would not give rise to permanent rights. Arguably, it would be difficult for someone to demonstrate or prove that; nevertheless, the owner should have the right to do so. Equally, on amendment No. 46, if the owner has taken serious steps—I am not talking about just a piece of string—to prevent the land from being used as described, that should be taken into account. If the owner has erected sensible fencing and people have consistently broken it down so as to get on to a piece of ground to walk their dogs, I wonder whether they should have their property confiscated. That is what the impact of clause 15might be.
I am sorry to have taken some time over this group of amendments, but I think that it was right to discuss them all together. I seek, through a variety of propositions, to shift the balance slightly back towards the genuine landowner, who could be of any type, and to introduce a little more proportionality into the idea of the creation of village greens. If land has been used for 20 years without let or hindrance or the owner’s trying to stop that use, I entirely support what the Minister is trying to do. We want more village greens, but we also support the general principle of property ownership: the owner has a right to protect his property and the rights that accrue to him from it. At the moment, the clause tilts the balance rather too far away from that. I hope that the Minister will consider our points seriously. While he responds, I shall think further about his point on amendment No. 43.

Tom Levitt: Like other Committee members, I am pleased to serve under your chairmanship, Miss Begg. The last time that I scrutinised legislation line by line in a Committee, I was sitting beside you on the pre-legislative scrutiny Committee for the Disability Discrimination Bill. You showed a lot of common sense then, and “commons sense” is clearly what we all require today. I cannot let the moment pass without pointing out that this week marks the 74th anniversary of the Kinder trespass—a wonderful moment in the history of this country, and of my constituency in particular. In that spirit, I am very much in favour of the Bill and its measures. I also have some sympathy for the points made by the hon. Member for South-East Cambridgeshire, although I put the problem down to inadequate guidance rather than to a need to amend the Bill in the way that he advocates.
Having said that, I should like to take the opportunity to question the Minister about a situation that has arisen in my constituency. As I mentioned in an intervention on the Minister for Climate Change and the Environment on Second Reading, there have been two instances in which I believe that the town green applications have been misguided and unhelpful for the common good of the community. The first was in an area in Buxton called Fairfield where planning permission has been given for some 300 houses, including a significant proportion of much-needed social housing, on a large piece of land adjacent to a huge and well established common. I stress that the application is not for land that is or ever has been regarded as common land, but access to the new site is across a smaller piece of land for which a town green application has been submitted. That application was submitted after the planning permission was given. As a result, because of unresolved cases going through the courts, the decision as to whether the town green application should be granted has been delayed by several years—even the main campaigner for the town green no longer lives in the area, so presumably no longer has an interest. Everything is waiting for court cases to be decided elsewhere.
The second instance is in New Mills where, the Minister will not be surprised to hear, a derelict Methodist church and its graveyard, along with a small piece of adjacent land owned by the town council, has been designated as the site of a new magistrates court to serve the whole of the High Peak. It is a facility that is badly needed; we have inadequate magistrates court facilities. Although the planning application was initially refused by High Peak borough council, it went to appeal and public inquiry and was granted to Derbyshire courts on appeal—from memory, about three years ago. Immediately after the appeal had been granted and the planning permission was given, a town green application was made on a small part of the site that was, nevertheless, crucial in giving access to where the magistrates court was going to be situated. That piece of land is in an entirely urban residential area. From recollection, it is roughly the size of this room, but it has held up major public works for several years. At one point, a public inquiry was established by the county council for a hearing into the town green application. That public inquiry was cancelled on legal advice, at a cost to the taxpayer, because of the outstanding cases going through the courts in relation to other town green applications elsewhere.
I consider that both town green applications were made not on the merits of the land in question, or for the purpose of enhancing the environment or retaining rights of common usage, but to frustrate planning permissions. In one case, since April 2005, the applicant is no longer Derbyshire courts but the Department for Constitutional Affairs, which now has direct responsibility for the provision of magistrates courts.
All those delays are at a great cost to the taxpayer and we cannot see, at the moment, how or when these matters will be resolved, because every time that a case comes up, another one follows it through. The problem is the paucity of the guidance that is given. The courts are simply deciding a succession of case law each time and, because of an inadequate guidance framework, new case law leads to future guidance changes, which means that the authorities making the decisions on whether to grant a town green application are on shifting sands and can never be really sure of their ground.
I have written to the Department following my intervention on Second Reading last week and I await the full, detailed responses. I hope that the Minister and the Committee agree that town green applications should normally be made before planning permission is given, that applications designed principally to thwart the legitimate planning process should get short shrift and that the use of repeated town green applications for the same land should not be allowed to cause inordinate delays to the development process.
How does the Minister see the contents of the Bill—or the Act, when it becomes enacted—affecting outstanding town green applications that have not yet been decided on? Would those become subject to the Bill?
It is a matter of strengthening guidance, rather than changing the Bill. I am happy to go along with the Government amendments and pleased and proud to support the Bill. However, where cases arise that are tantamount to abuse of the system—as I think is so in two instances in High Peak—I hope that they can be addressed through firmer guidance.

Philip Dunne: Thank you, Miss Begg, for calling me. I should like to endorse the comments of other Committee members: it is a pleasure to serve under your chairmanship.
I support the amendments tabled by my hon. Friend the Member for South-East Cambridgeshire. I remind the Committee of my declaration of interests, which I identified on Second Reading, in relation to some grazing rights and modest ownership rights in common land.
I should like to draw the Minister’s attention to two areas of conflict, which may arise if we do not take into account the amendments tabled by my hon. Friend. One relates to the Highways Act 1980 provisions that I referred to on Second Reading, which provide protections for landowners to give rights of way over their property, although those are not permanently enshrined. Section 31 of that Act allows a landowner to give notice that it is not his or her intention that land should become permanently dedicated as a right of way.
A similar provision ought to apply to a green to which a landowner gives permissive access. The two approaches will be inconsistent if the Bill is more prescriptive than the 1980 Act. The Minister might argue that we should change the 1980 Act. That will be for him to say, but I do not favour it.
Part of my concern arises from the length of time involved and the retrospective nature of the proposals. On Second Reading, I raised an example from my constituency in which some Glebe land owned by the Church had been used for pastimes such as leisure pursuits and dog-walking for much longer than 20 years. If the landowner does not wish their land to be registered, it will in effect be confiscated as a result of the provisions unless we pass the amendments, and I am not sure that it is the Bill’s intention to disfranchise that kind of owner in such circumstances.
A related point concerns Human Rights Act 1998 implications. A particular case was brought to my attention by one of my constituents. The Bill, if not amended, could fall foul for not being compatible with the Human Rights Act, particularly article 1, protocol 1 on the protection of property. The disproportionate limitation of property rights has no viable means of protecting the right to freely enjoy possession. The case that my constituent highlighted was JA Pye (Oxford) Ltd v. United Kingdom 2005. I can give the Minister the reference number if he needs to look it up. I should be interested to know whether he has considered the Bill’s Human Rights Act implications for landowners. He might like to comment on that before the question is put.

David Drew: I shall ask the Minister a number of questions. During debate in the other place, a considerable amount of time was spent on the matter that we are discussing. I agree with the hon. Member for South-East Cambridgeshire that it is at the centre of the Bill. Hon. Members in the other place were trying to define the term “public interest”. Having read that debate and heard what the Minister said subsequently on Second Reading here, I am still not sure whether we have managed to clarify exactly what we mean by the public interest. It is crucial to the maintenance and enhancement of common land and village greens in particular.
I take note of what other hon. Members said about curtilage in their interventions. Given that we are all awaiting with bated breath the verdict in the Oxfordshire Trap Grounds case, I am concerned that we could make the situation more confusing if we are not careful. We might even be making it more restrictive for those who, like myself, want common land, access and proper use of land to be restored. If we are not careful, we could make it worse.
I ask my hon. Friend the Minister: having obtained some more balance in the legislative framework than was originally proposed, why does he feel duty bound to delete subsection (6) in particular? I disagree with the hon. Member for South-East Cambridgeshire on the time scale. We need proper safeguards. By altering the time when an application can be made where there has been a lack of use and changing the definition of the relevant period, we seem to be erring in favour of those who wish to redefine and reuse the land. I accept that this issue will always be problematic, because we run directly into the planning process as against the nature of what I see as public land that should be protected as such, but I am not sure whether my hon. Friend is not making it more difficult for people who wish, as my hon. Friend the Member for Pudsey described, to make a genuine application.
The problem is the abuses that we all know about. As my hon. Friend the Member for High Peak said, applications can be used as an opportunity to forestall what seems to be the best use of the land. However, we have to be careful—obviously, this clause will be considered carefully, linking directly with the next clause; I am sure that my hon. Friend the Member for Sherwood and I will have things to say about that—when people are trying to change the use of public land. Sometimes that is for a good purpose, such as my hon. Friend the Member for High Peak described, but we must be careful that the safeguards are not being eroded.
That is why I ask why the Government are taking out clause 15(6) and, with regard to the Minister’s earlier responses on how the curtilage of a building affects common land and, in particular, the designation of a village green, why what the Government now propose seems less strong than what was originally in place when the Bill came from the other place.

Daniel Rogerson: I am, to a great extent, convinced by the arguments advanced by the hon. Member for Stroud about not seeking to be obstructive to attempts to preserve rights of access to open spaces and common land. I have specifically used the phrase “open spaces”. I suspect that the hon. Gentleman, like me and other hon. Members, has received information from the Open Spaces Society. The hon. Member for South-East Cambridgeshire referred to valuable briefings from the Country Land and Business Association. As always, there are many sides to the various discussions, so it has been useful to read the submissions given to us.
The Minister referred to the capacity of volunteer organisations to take advantage of the provision made by the Bill to apply to register greens. We need to preserve that facility for such organisations. The maximum time should be given to allow such applications to be made and to move forward.
With regard to applications that have failed, the hon. Member for South-East Cambridgeshire was keen to say that further applications could not be made within a specified period. Again, I am sure that volunteer organisations will make every effort to get applications right the first time around, but it is important that if an application fails on a technicality, they should have the right to submit a further application, having reflected on that.
We are considering Government amendments and amendments tabled by the hon. Member for South-East Cambridgeshire. His amendments Nos. 46 and 47 relate to attempts by landowners to make it clear that any rights being given are temporary, or rather that any access given is temporary. I am more sympathetic to that. It is clear that in respect of an event possibly taking place or a community activity occurring in a village or town, this could act as a great disincentive to people allowing that to happen on their land. It is important that we take on board the provisions in amendments Nos. 46 and 47 to allow landowners the opportunity to demonstrate that they have allowed these permissions on a temporary basis.
Amendments Nos. 46 and 47 are sensible, but I am less sympathetic to the Government’s amendments to the clause, and to amendment No. 42.

Paul Truswell: I want to speak on this clause not only because, as I made clear on Second Reading, I have a particular constituency interest, but because I have observed the process that my constituents have had to go through in some detail. I caution Committee members against the comments of the hon. Member for South-East Cambridgeshire—and also, I have to say, of my hon. Friend the Member for High Peak—in respect of adopting a lowest common denominator approach that aims to prevent the few cases of abuse, but at the same time throws the baby out with the bathwater in terms of the many legitimate applications that have been made—some of which are in abeyance—and that I am sure will be made in the future.
Part of the problem is that the hon. Member for South-East Cambridgeshire predicates his view and approach on the belief that the process is now loaded against the landowner. My experience is that putting in a town or village green application is an extremely difficult and complex process. My hon. Friend the Minister alluded to some of the components of that.
The idea of not being allowed to submit an application within five years of an unsuccessful application should be fiercely resisted. As was recently alluded to, because this is a complex process that is undertaken by what are essentially volunteers from within the community, it is quite possible that they will get it wrong. Indeed, I suspect that some of the applications submitted in order to thwart planning applications might not be fully considered—might not be submitted in the most cogent way possible—and that they may fail because of that.
We obviously have a problem with Trap Grounds. Some applications have probably failed. I do not know what records have been kept throughout the country on how many applications have been heard and automatically rejected because of Trap Grounds. I know that many local authorities, including Leeds city council in my area, have tried to defer consideration of these applications. The application in respect of Yeadon Banks in my constituency was submitted in July 2004; clearly, some time has elapsed since then, because of Trap Grounds.
I agree with the comments of my hon. Friendthe Member for Stroud about the deletion of subsection (6). I support him in pressing the Minister for clarification on that. We do not want a situation to arise whereby some of the applications—

Jim Knight: If it will help my hon. Friend, let me say that the provisions of subsection (6) are simply re-enacted by subsections “(3) or (3A)” as referred to in one of my amendments. They are all still included. This is just a case of what I referred to in my opening remarks as reordering everything to make better sense. I hope that the fact that those provisions are all still included reassures my hon. Friend, and helps to move the debate forward.

Paul Truswell: I am grateful for those comments.
Further to amendment No. 42 and the suggestion that the existence of a substantive planning permission should be an obstacle to the further progress of a town green application, I suggest that the two processes are entirely separate. Again, I can cite my own parochial example; the planning process has not been particularly helpful in protecting an area of land that has been in public use for generations and, certainly on a prima facie basis, meets all the tests that in due course it will have to satisfy, when and if the local authority gets round to determining things, in the context either of the Bill or of the decision on Trap Grounds.
The idea that we are dealing with landowners with limited resources is not the point that we should examine. We should defend the town green process and, if anything, make it far easier. As my hon. Friend the Member for Stroud indicated, the application in my constituency has been a lengthy process. Advice has had to be sought and people have had to mull over complex and arcane legal commentaries. There has been a need to raise awareness within the local community, organise public meetings and establish a committee to carry out the application process. People have gone round to try to get sufficient statements of evidence to demonstrate that the town green application meets the requirements.
That process is one of the reasons why I hope that the Committee will resist amendment No. 45. In my experience, reducing the period available to undertake such a convoluted process would be an obstacle to some communities. As my hon. Friend said, we are talking about volunteers in the community who have other lives.
I would caricature the application process as being a little like getting a complex piece of do-it-yourself furniture and having to piece it together in some sort of treasure hunt, only to discover that some essential pieces are missing. I counsel Members who are persuaded or influenced by comments made from the Opposition Front Bench and by my hon. Friend the Member for High Peak not to throw the baby out with the bathwater and make the process more restrictive.
My experience shows that the vast majority of people do not know what a town green is. I am sure that many communities have town or village greens but do not realise that they might be able to achieve that legislative and formal status until a planning application or unitary development plan demonstrates that the land is not as sacrosanct as they had hoped.

Paddy Tipping: This has been an important debate with historical relevance in this place. There has always been an argument between those who believe in the rights of the private owner and those who favour the wider, informal rights of the public good. If one were to look at the records of Parliament, one would see that that has been debated strongly many times.
The hon. Member for South-East Cambridgeshire, with whom I agree on many issues, made thecase, supported by the hon. Member for Ludlow(Mr. Dunne), for the primacy of the right of private ownership. However, the world has changed. The importance of the wider public good and the right of public participation has increased, and that trend will continue. My hon. Friend the Member for High Peak talked about the Kinder Scout trespass, and one of this Government’s monumental achievements has been the Countryside and Rights of Way Act 2000, creating the right of wider access to wild and open spaces. My hon. Friend the Minister and his officials have worked hard to balance that wider public right against that of private ownership. He listened to the debate in the other place and has tabled amendments that recognise some of the concerns expressed by the hon. Member for South-East Cambridgeshire.
Some of us feel that the powers of the Bill do not go far enough in looking after the public good and the right of wider informal use of land. The Minister and his officials have listened to the debate and tried to find a balance, and I urge him not to go any further. Having watched the progress of the Bill, I have seen movement towards the rights of private ownership. I counsel him to maintain his present position and not to give further ground, because informal areas that have acquired a tradition of usage over many years are important for the community at large and should not be given away in the manner that is being asked today. The balance is right and we should stick with it, because—in the old phrase—this land is ours.

Jim Knight: Those Members who were on the Standing Committee of the Natural Environment and Rural Communities Bill will remember that I always took seriously the words of counsel from my hon. Friend the Member for Sherwood, and I see no reason to deviate from that course now. The debate has been useful and I shall try to address the points that have been made as best I can. If I fail in one or two cases I shall write to Members accordingly.
The hon. Member for South-East Cambridgeshire raised a question about the five-year grace period from commencement for cases in which access to a green was ceased prior to commencement. My hon. Friend the Member for Pudsey made a strong and passionate case for a sensible grace period. The five-year period applies when use as of right has ceased, and I think that five years is appropriate to allow a catch-up.
The hon. Member for South-East Cambridgeshire also talked about development and made some interesting points about larger developments and about community developments that may be happening, which may be frustrated by the April date of a week ago. I shall reflect on what he says, but I ask him also to reflect on the fact that clause 15 re-enacts, with some modifications, the existing regime for registering land that has had 20 years’ recreational use as of right by local people. It reflects the customary law position in which any free-standing period of that kind gave rise to a presumption that land was a green, even if it had occurred many years earlier. The element of risk that the developer undertakes, therefore, has in many respects not changed and will not do so by virtue of the amendment. If the development of a community centre that is wanted by the whole community is affected then obviously there is capacity for exchange in order to allow that, although it may not be entirely to the satisfaction of the hon. Gentleman.
On amendment No. 42, determination of a planning application turns essentially on policy considerations. A committee of local politicians decides, in light of national and local guidelines, whether to allow a development to proceed, and it is well established that any consent that it gives is without prejudice to other constraints that may affect the use of the same land, such as the existence of prior rights over the land that may make the development unlawful. I recognise, of course, that some particularly difficult and emotive situations can arise locally in cases when, after the giving of planning consent, there is an application to register the same land as a green—my hon. Friend the Member for High Peak has explained that.
Ultimately, determination of an application to register land as a town or village green is a legal, rather than a policy matter. The sole issue is whether the qualifying recreational use by local people has occurred. The tests are tough, but if the local inhabitants can meet them, they prove that the land is a green and should be registered as such. It would be wholly inappropriate for the Bill to treat a planning consent as overriding the scope for such registrations.
On the second point in the amendment, the Government do not agree that registration should not be possible if an application to register the land was refused in the five years before the commencement of clause 15. As Committee members know, the Court of Appeal decision in the Trap Grounds case that we have discussed has for some time effectively prevented registration of greens, even in the most deserving cases where it was clear that the qualifying use had taken place before application. I have no accurate figures of the numbers that have been affected, for which my hon. Friend the Member for Pudsey asked, although I have various other figures. I will not delay the Committee by running through the information that I have if it is not exactly what my hon. Friend wants.
It would be wrong for the Bill to treat determination in such circumstances as a definitive indication of the status of the land. On the other hand, if an application was without any substance when determined before, as perhaps might be the case in High Peak, it would remain without any substance if remade under clause 15. Indeed, depending on the circumstances, it might not even be possible for the authority to entertain it again if nothing has changed and the application remains as hopeless as ever. I will want to reflect on the guidance, as my hon. Friend the Member for High Peak said. It is true that case law has been evolving rapidly in recent years; we hope that the outcome in the Trap Grounds case and the passage of the Bill will make the criteria clearer for all.
The Open Spaces Society has issued comprehensive guidance on the subject, entitled “Getting Greens Registered”. We will need to speak to the society and others about how updated guidance on these matters should best be provided. If my hon. Friend wants to write to me I shall be happy to discuss his ideas and the problems in his constituency, given his generally progressive attitude to town and village greens.

Tom Levitt: I am grateful to my hon. Friend. One of the problems of the guidance versus case law issue is that case law takes so long. The delay in waiting for case law to be decided means that the town green applications cannot be processed with the speed that anyone would want without the need for rushing. Does the Minister think that the net effect of the Bill—a swing towards guidance rather than case law—would reduce the present unnecessary waste of time between the application and the decision in some cases?

Jim Knight: I certainly hope that developing the expertise of commons registration officers and authorities will make things easier. The Bill is a tidying-up process that largely repeats the 1965 Act. If I can further streamline things through guidance I will do so and perhaps we can discuss it.
In respect of amendments Nos. 46 and 47, the first proposed requirement of notifying the owner is a matter for regulations under clause 24, which we will develop and consult on in due course. The current regulations require the authority to notify the owner where known, to advertise the application and to place a notice on the land. We would expect the new regulations to contain something comparable.
The second and third proposed requirements—to consider whether the owner has taken reasonable steps to prevent qualifying use by local inhabitants and to consider whether the owner can show that users were informed throughout the relevant period that consent to such use was temporary and not intended to lead to permanent rights—are simply elements of what, by definition, the authority must do when it is considering whether the use as of right by local inhabitants has occurred for at least 20 years. Use as of right is without permission or secrecy. If the owner can show that he prevented the use or that he informed users throughout that their use was permissive, the application must fail. 
On the basis that the amendments are unnecessary, I ask the hon. Member for South-East Cambridgeshire to ask leave to withdraw them.
The hon. Member for Ludlow asked a couple of questions to which I shall respond. In respect of section 31 of the Highways Act 1980, we concluded that it was unnecessary, and would not always be appropriate, to introduce the possibility for a landowner to declare that recreational use of his land is not as of right. A landowner who wants to continue to allow local people to use the land simply needs to communicate his permission clearly to them—for example, by putting prominent notices on the land which he maintains or periodically renews. The difficulty with substituting a paper procedure is that people may be unaware that their use of the land as of right is challenged. That is unsatisfactory when 20 years’ use as of right has already taken place and it is important for any challenge to as-of-right use to be overt so that people recognise it as such and, if appropriate, take action to secure registration of the land before the two-year period of grace elapses.
For that reason, clause 15 does not treat the mere giving of permission as enough to end as-of-right use. It would be unfair if an apparently welcoming action taken after a long period of as-of-right use were able to cancel out long-established as-of-right use in that way and thereby prevent registration of the land.
Incidentally, although I cannot comment on specific cases, I do not believe that a provision similar to section 31(6) of the Highways Act 1980 would be of any assistance when 20 years’ use had already accumulated because that section can be used to prevent the presumed dedication of rights of way only when 20 years’ use has not already taken place.
I shall write to the hon. Member for Ludlow about the Glebe land that he referred to.
In respect of applications to register land as a green infringing the owner’s human rights, we do not accept that that is so, but the Judicial Committee of the other place is considering that issue in the Trap Grounds case.

James Paice: On a point of order, Miss Begg. As we have changed the structure of the debate, will I have another opportunity to speak?

Anne Begg: I was going to offer you that opportunity.

James Paice: Thank you, Miss Begg. In that case I do not need to intervene on the Minister.

Jim Knight: As we have had a thorough debate, I hope that it will be taken as a stand part debate.

James Paice: I appreciate your tolerance, Miss Begg.
I am grateful for various things that the Minister said. Starting at the end, he talked about amendments Nos. 46 and 47 and I am grateful for his explanation that owners will be notified and that whether an owner has sought to prevent or has given permission would both nullify the as-of-right clause. I confess that I was not aware of that definition of “as of right”, so I accept that the amendments are unnecessary, but the points are important and it is worth having them on the record.
On the earlier amendments and planning consent, I confess that I am still slightly concerned about the Minister’s response. I appreciate the technical distinction between a judgment on policy and a judgment on law, but the Government will have a serious problem with the present situation. The Minister kindly said that he would reflect on the matter, but he may want to reflect on the developments that will be hit by the measure now and he might want to consider an amendment to exempt those on which construction is already in process.

Jim Knight: If the hon. Gentleman is aware of any such circumstances or any are made known to him and he communicates them to me, that would help me when considering the matter.

James Paice: I am grateful to the Minister and I will certainly try to do that, with the agreement of those who approach me.
The Minister said that much of the provision is just re-enshrining previous legislation, but there are some twists that change it slightly and it is important that people who will be caught by the measure should be exempted. It is fair enough that anyone who applies for planning consent in future should be covered by the legislation and I accept the Minister’s point, but those who have already received it and believe that everything is going forward need an opportunity to make representations.
I heard what the Minister and other hon. Members said about the period of one to five years, but I still think that people could go a bit quicker than has been suggested, although I have not considered the Trap Grounds issue, which I accept as a reason for needing a fair period.
Unusually, I found myself at odds with the hon. Member for Sherwood, although that will not surprise him. I fully recognise that the world has moved on. If he was implying that I was defending property rights as they might have existed 50 years ago, he is living in a different world. I certainly am not doing that, norwas I.

Paddy Tipping: Some of the discussions reminded me of the debates about enclosures, so we are talking about centuries ago, not 50 years ago.

James Paice: I was not a Member of the House then, so I shall have to bow to the hon. Gentleman’s memory, although I think that he is straining the point. As I made clear at the outset of my remarks, I wholly support the principle of registering village greens. However, owners should not be caught unwittingly by the legislation, which could, in effect, nullify the value of an asset.
My only other point relates to the Minister’s intervention on me on amendment No. 43. He said that the fact that subsection (5)(b) depends on subsection (5)(a)—that is, the end of paragraph (a) ends with “and”—makes it subsequent. Having spent a few minutes reading the provisions, but like him not having a legal background, I am not entirely convinced that he is right. His assertion that subsection (5)(b) is dependent on subsection (5)(a) is of course correct, but subsection (5)(a) refers to prohibition under subsection (4), which refers to prohibition
“by reason of any enactment.”
Logically, therefore, subsection (5)(b) refers to prohibition by reason of an enactment.
My understanding of the Minister’s response to amendment No. 43 is that landowners who have previously done nothing should not suddenly be able to put up a welcome board to avoid registration. I entirely agree that that should not be permissible, but that is not how I read subsection (5), linking it to subsections (2) and (4). There is no reference to subsequent and the prohibition appears to refer only to an enactment. Unless I am wildly wrong, I do not think that an enactment means an action by a private individual.

Jim Knight: We might need to get our collective non-legal heads together and work out the wiring of the provisions. To go back through all the stages, subsection (4) says:
“In determining the period of 20 years”.
To my mind, that informs the subsequent nature of subsection (4). Subsection (5)(b) is free-standing from subsection (5)(a), but both are subject to the words
“in a case where the condition in subsection (2)(a) is satisfied”.
We could probably have this debate for some time and we might want to return to it on Report, but in the meantime we might want to have a chat and clarify it for ourselves.

James Paice: That may well be necessary, especially as the Minister just said that subsection (5)(b) is free-standing from subsection (5)(a), whereas I thought that he told me earlier that it was dependent on paragraph (a), which indeed ends with the word “and”, which suggests that paragraph (b) is not free-standing. I am happy to have the discussion that the Minister suggests.
To conclude, I have attempted to remove too much of an element of retrospection. That is why I talked about planning consent, particularly involving developments that are already under way, and why I sought to remove subsection (5)(b), which strikes me as a retrospective provision. It seems odd that only a few months ago the Minister and I were debating retrospection about a different form of access. He was arguing against my case because it was retrospective, but today the boot is on the other foot. He is trying to do things retrospectively that I believe he should not.
We have had a good debate, and I am grateful to the Minister for his offer to reconsider certain aspects and explain others.

Amendment agreed to.

Amendments made: No. 3, in clause 15, page 7, line 34, leave out ‘the relevant period' and insert
‘the period of two years beginning with the cessation referred to in paragraph (b)'
No. 4, in clause 15, page 7, line 34, at end insert—
‘(3A) This subsection applies where—
(a) a significant number of local inhabitants indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years;
(b) they ceased to do so before the commencement of this section;
(c) the application is made within the period of five years beginning with the cessation referred to in paragraph (b); and
(d) the land was neither covered by a building nor within the curtilage of a building on 18 April 2006.'
No. 5, in clause 15, page 7, line 35, leave out ‘and (3)(a)' and insert ‘, (3)(a) and (3A)(a)'
No. 6, in clause 15, page 8, line 3, leave out subsection (6)—[Jim Knight.]

Clause 15, as amended, ordered to stand part of the Bill.

Clause 16

Deregistration and exchange: applications

Paddy Tipping: I beg to move amendment No. 32, in page 8, line 32, leave out subsection (2).

Anne Begg: With this it will be convenient to discuss the following amendments:
No. 71, in clause 16, page 8, line 33, at end insert—
‘(2A) If an application for release land of not more than200 square metres is made less than 10 years after an application has been granted for the release of other land within a distance of 50 metres of it, then, regardless of any change of ownership that may have occurred during that period, the application must include a proposal under subsection (3).'.
No. 33, in clause 16, page 8, line 37, leave out subsection (4).
No. 72, in clause 16, page 8, line 41, after ‘green', insert
‘or already be any other public open space;
(aa) the replacement land is not less in area and is equally advantageous to the persons (if any) entitled to rights of common or other rights, and to the public;'.
No. 70, in clause 16, page 9, line 6, at end insert—
‘(e) whether the alternative land is no less in area and equally advantageous as the land taken'.

Paddy Tipping: I shall use my time constructively. Clause 16 deals with the deregistration and exchange of common land. Amendment No. 32, in my name and that of my hon. Friend the Member for Stroud, and the other amendments all reflect the concern of the Committee that pieces of land of less than 200 sq m may not be properly protected.
The clause gives a permissive power of replacement, but under the amendments, when an exchange of land is to take place, whatever its size, new common land should be put in place. My feeling—I am delighted that it is shared by other members of the Committee—is that common land is mostly not large areas of open countryside but small, fragmented spaces. If land of less than 200 sq m is not replaced, we will see the gradual eating away of commons. That is the purpose of the amendments. I hope that the Minister will consider them.

David Drew: My hon. Friend, in sharing the amendments with me, has given me even less time to speak to them than he had. I shall be commendably brief.
Amendments Nos. 71, 72 and 70, in which mine is the lead name, are complementary to my hon. Friend’s inasmuch as they seek to clarify which bits of land may be brought forward for exchange. I shall deal with each amendment in turn; they seek to stiffen the resolve of those who wish to see in the Bill some protection for smaller pieces of land.
Amendment No. 71 would prevent the nibbling away of pieces of land. Areas of less than 200 sq m should not be taken without replacement.

It being One o'clock,The Chairmanadjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at Four o'clock.